New Study: Significant Risk of Wrongful Conviction in Plea Bargaining

The nation has been enthralled by the story of Brian Banks. A former blue-chip high school football athlete, Banks served five years in prison after a rape conviction, wore an ankle location bracelet, and was labeled a sex offender for five more years, before his victim admitted the rape never happened. When NFL teams lined up to give him a second chance, the nation reveled in the comeback story but also faced troublesome questions. Why would an innocent person take a plea deal that would send him to prison and label him a sexual offender? How often does this happen? A new study suggests many are vulnerable to taking a deal even when innocent.
Lucien E. Dervan and Vanessa Edkins report here that over half of the participants in a research study were willing to falsely admit guilt in exchange for perceived benefits. For example, a college student was accused of cheating and presented with benefits in exchange for saving her university the trouble of pursuing disciplinary action against her. She decided to take the deal. Unknown to the student was the fact that she was part of a study to replicate the hard choices suspects face in criminal justice. The study authors, of course, knew that she was innocent of the charge.
Brian Banks agreed to an Alford Plea—he pleaded nolo contendere or no contest. As Mark Godsey explained here, this plea enables the defendant to neither admit nor dispute the charges against him. We all now know that Banks was innocent but, on the advice of counsel, decided not to risk a conviction and a draconian sentence.
The authors of this study cite the U.S. Supreme Court in opinions that acknowledge the potential risk of innocent persons agreeing to plea bargains and the importance of using plea bargaining only in cases in which evidence of guilt is very strong.
In Banks’s case, and in countless others, the testimony of the victim is considered strong evidence in a he-said, she-said crime. Eyewitness identification in stranger-to-stranger cases has often been considered virtually irrefutable evidence. But we’ve learned that a victim can lie, and that eyewitness identifications have been historically wrong 25 percent of the time in thousands of cases in which rape kit DNA has been compared with the DNA of the prime suspect, identified by the victim. These lessons cast doubt on the evidence that has often prompted a suspect to take a plea deal.
The U.S. Supreme Court in Brady v. Maryland acknowledged plea bargaining as a method of adjudicating justice, but it also recognized the potential need to reexamine this practice “if the encouragement of guilty pleas by offers of leniency substantially increased the likelihood that defendants, advised by competent counsel, would falsely condemn themselves.”
Most in the criminal justice system acknowledge that plea bargaining serves a purpose and often results in a fair resolution, saving the time and expense of going to trial presumably in cases in which evidence of guilty is strong or overwhelming. The system would collapse if all cases went to trial. But the case of Brian Banks, the lessons of DNA, and the results of research such as that noted here, suggest that new caution must be given to plea bargaining. We can never permit our need for expediency to trump the pursuit of true justice.